Madras High Court
D.Paulraj vs The Assistant General Manager on 16 December, 2021
W.P.(MD)No.2925 of 2018
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED: 16.12.2021
CORAM:
THE HONOURABLE DR.JUSTICE ANITA SUMANTH
W.P.(MD)No.2925 of 2018
and
W.M.P.(MD)No.3084 of 2018
D.Paulraj ...Petitioner
/Vs./
1.The Assistant General Manager,
Union Bank of India,
Central Office,
No.239, Vidhan Bhavan Marg,
Mumbai – 400 021.
2.The Regional Manger,
Union Bank of India,
Regional Office, B.B.Kulam,
Madurai District.
3.The Branch Manager,
Union Bank of India,
Easwaran Kovil Street,
Emaneshwaram – 623 701,
Paramakudi,
Ramanad District. ...Respondents
1/11
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W.P.(MD)No.2925 of 2018
PRAYER:- Writ Petition - filed under Article 226 of the Constitution of
India, praying for the issuance of a Writ of Certiorarified Mandamus
calling for the records pertaining to the impugned letter in HR:MPRD: F-
1575: 431:2016 dated 09.09.2016 on the file of the Respondent No.1 and
quash the same as illegal and consequently directing the Respondent No.
1 to appoint the petitioner on compassionate grounds for any post which
he is eligible within the time period stipulated by this Court.
For Petitioner : Mr.T.Aswin Rajasimman
for Mr.T.Lajapathi Roy
For Respondents : Ms.P.Porkodi Nachiar
for Mr.N.Dilip Kumar
ORDER
The petitioner is one of three sons of one S.Devandra Kumar,
who was employed in the respondent bank, the Union Bank of India (in
short, hereinafter referred to as 'Bank'). Devendra Kumar had passed
away on 04.10.2014, in harness, while working as Head Cashier - II cum
clerk in the Bank.
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W.P.(MD)No.2925 of 2018
2.The petitioner approached the Bank within the time
stipulated under the scheme of appointment on compassionate ground
dated 19.01.2015 seeking appointment in place of his father. The bank
would submit that the application had been rejected on 02.04.2016, but,
according to the petitioner, this order was never received by the
petitioner.
3.A representation had been made by the petitioner reiterating
the request for compassionate appointment, which has come to be
rejected by way of impugned order dated 09.09.2016, wherein the bank
refers to the earlier rejection dated 02.04.2016. One of the arguments put
forth is that since letter dated 02.04.2016 has not been challenged, the
present writ petition is not maintainable.
4.This argument is rejected for the reason that even assuming
that order dated 02.04.2016 had been received by the petitioner, the sum
and substance of both letter dated 02.04.2016 as well as 09.09.2016 are
one and the same. A copy of letter dated 02.04.2016 is placed on record
now by the respondent.
5.Both orders as above, are cryptic, and reject the request of
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W.P.(MD)No.2925 of 2018
the petitioner stating that the matter had been placed before the
competent authority and had been rejected 'taking into account the
income of the family from all sources'. There is no elaboration on
enquiry, if any, that was caused prior to passing of the order in regard to
what the avowed sources were, or the income was, that was taken into
account by the authority, in rejecting the request of the petitioner.
6.The scheme for compassionate appointment defines a
dependent family member as a spouse, a wholly dependent son, wholly
dependent daughter or a wholly dependent brother or sister in the case of
an unmarried employee. Clause 10 of the scheme envisages a situation
where a dependent family member would continue to the entitlement of
compassionate appointment, even if there were an earning member in the
family.
7.Clause 10 of the Scheme reads as follows:
“10. WHERE THERE IS AN EARNING
MEMBER
10.1. In deserving cases, even when there is
already an earning member in the family, a
dependent family member may be considered for
compassionate appointment with the prior
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W.P.(MD)No.2925 of 2018
approval of the competent authority of the bank
who, before approving such appointment, will
satisfy himself that grant of compassionate
appointment is justified, having regard to the
number of dependents, assets and liabilities left
by the employee, income of the earning member
as also his liabilities including the fact that the
earning member is residing with the family of
the employee and whether he should not be a
source of support to other members of the family.
10.2. In cases where any member of the family of
the deceased or medically retired employee is
already in employment and is not supporting the
other members of the family of the deceased
employee, extreme caution has to be observed in
ascertaining the economic distress of the
members of the family of the deceased employee
so that, the facility of appointment on
compassionate ground, is not circumvented and
misused by putting forward the ground that the
member of the family already employed is not
supporting the family.”
8.In the present case, the petitioner is one of three sons. The
elder son had been temporarily employed abroad and had his own family
to support. At the time of filing of the writ petition, he had returned to
India and is stated to be unemployed. The younger brother was pursuing
the study of law at the time when the writ petition was filed. The mother
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W.P.(MD)No.2925 of 2018
of the petitioner is stated to be physically disabled, bring 90% deaf and
dumb and her disability certificate is placed on record.
9.The substratum of the respondents’ case in rejecting the
request for compassionate appointment is that the petitioner/his family
has alternate sources of income. This has not been elaborated and it thus
falls upon this Court to discuss and arrive at the possible revenue sources
that might have weighed with the bank.
10.Even assuming that the older brother of the petitioner is
presently employed, to establish which no enquiry has been carried out
by the Bank, it cannot lead to the automatic conclusion that his income
would be available to support the petitioner and their mother. The older
brother has a family unit of his own to support and nothing is brought on
record by the respondents to establish either the sufficiency of his income
of the willingness of the brother to support the petitioner and/or their
mother.
11.The younger brother is stated to be a practicing lawyer,
having completed the course pending writ petition and the adequacy of
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W.P.(MD)No.2925 of 2018
his income or his willingness or inclination to support the petitioner and
their mother cannot also be assumed. In any event this has also not been
established by the respondents.
12.The Hon'ble Supreme Court in the case of Govind Prakash
Verma vs. Life Insurance Corporation of India and others (2005 (10)
SCC 289) opines that the family pension that was being paid to the
widow of the deceased as well as employment of the elder brother as
casual labour, would hardly be relevant in determining the entitlement of
that petitioner for compassionate appointment. The findings of the High
Court were thus reversed, and the entitlement of that petitioner to
compassionate appointment was confirmed.
13.In the present case, I am of the view that the impugned
order hardly contains any reasoning to reject the request of the petitioner.
In fact, that the petitioner is unemployed has not been disputed either in
the impugned order or in the counter. The petitioner also states that he is
presently supporting his mother through his meagre resources. Both, the
impugned order and the counter merely refer to 'family income of the
petitioner’ without elaborating on what the nature of the income is or the
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W.P.(MD)No.2925 of 2018
quantum thereof.
14.I am of the considered view that even assuming that the
petitioner’s brothers are employed with independent sources of income,
unless the respondents are in a position to establish that they are, in fact,
supporting the petitioner and their mother in full, the petitioner is entitled
to be considered for compassionate appointment.
15.The factum of ‘dependency’ of the petitioner upon the other
members of the family has to be examined with reference to the
petitioner’s sources of income, the income earned by his brothers and its
sufficiency, as well as their inclination to support dependents. After all,
though an ideal situation, it cannot be assumed that more prosperous
family members would always be inclined to, and enthusiastic about
supporting dependent family members.
16.The rejection of the petitioner's request is arbitrary, cryptic
and indicates absolutely no application of mind. The impugned order is
thus set aside. The petitioner's application for compassionate
appointment shall be considered afresh, bearing in mind all parameters as
discussed above, and in line with the ratio of the judgment of the Hon'ble
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W.P.(MD)No.2925 of 2018
Supreme Court referred to above and Clause 10 of the Scheme.
17.A speaking order be passed upon the representation of the
petitioner within six weeks from today, after hearing the petitioners and
considering all submissions made. This writ petition is allowed. No costs.
Consequently, connected Miscellaneous Petition is closed.
16.12.2021
Internet: Yes
Index :Yes/No
sm
Note: In view of the present lock down owing to COVID-19 pandemic, a
web copy of the order may be utilized for official purposes, but, ensuring
that the copy of the order that is presented is the correct copy, shall be
the responsibility of the advocate/litigant concerned.
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W.P.(MD)No.2925 of 2018
DR.ANITA SUMANTH, J.
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Order made in
W.P.(MD)No.2925 of 2018
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W.P.(MD)No.2925 of 2018
Dated:
16.12.2021
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